While the Texas Constitution requires the government to pay landowners for the land the government takes, there are many affected by the government exercising condemnation powers who are never adequately compensated.

An Example: Proposed High-Speed Rail

The proposed high-speed rail project provides an example of these landowners. The proposed railway will run between Dallas, Texas and Houston, Texas. In order to build a railway between Dallas and Houston, the government must lay track where the trains will run. There are multiple proposed routes for the train, all of which will require the government to use private land for these tracks.

The Constitutionally Protected Landowner

The Texas Constitution requires that the government pay adequate compensation for the land being taken. This means that if the government takes private land for a public purpose, the government must pay a “reasonable compensation” to the landowner.

If the tracks run directly over an individual’s property, the Texas Constitution protects the landowner. By laying tracks over the land, the government is effectively “taking” the land from the private landowner. Thus, the Texas constitution requires that these landowners be compensated for the government’s use of their land.

The Uncompensated Landowners

The individuals who own land around the railway are left without compensation, even though these properties may be negatively affected.

The proposed train will run every 30 minutes to 1 hour. Obviously, trains can be extremely noisy. If a train is running near a landowners property every 30 minutes, the noise from the trains can be distracting, annoying, and may even interfere with the owners business. Additionally, if the land is located near a train station, there will be a dramatic increase in traffic as people are traveling to and from the train station. Not only can the train affect the landowner’s personal life and business, the trains may reduce the value of the land. A buyer may be deterred from purchasing a property because of the noise, traffic, and other effects of the train.

While the landowners in the first group receive “adequate compensation”, the second group is left with property that has been greatly devalued by the government’s use of Eminent Domain. However, Texas law does not provide any remedy for those landowners in the second group. They must either learn to live with the noise, people, and traffic, or attempt to sell their property at a greatly reduced rate.

]]>https://foremanlawblog.com/2017/10/24/the-two-sides-to-texas-eminent-domain-law/feed/0edforemanlawblogThe Proposed ‘Bump Stock Ban’ is A Band Aid on Several Thousand Bullet Holeshttps://foremanlawblog.com/2017/10/17/the-proposed-bump-stock-ban-is-a-band-aid-on-several-thousand-bullet-holes/
https://foremanlawblog.com/2017/10/17/the-proposed-bump-stock-ban-is-a-band-aid-on-several-thousand-bullet-holes/#respondTue, 17 Oct 2017 18:27:03 +0000http://foremanlawblog.com/?p=354The ‘bump stock’ ban is a band aid on several thousand bullet wounds. While this common sense ban may be coming, it will do little to decrease the gun violence in the United States.

The Las Vegas shooting is the deadliest mass shooting in modern history. The shooter, Stephen Paddock, killed 59 people and wounded close to 500. Targeting the Route 91 Harvest festival in Las Vegas, he fired into a crowd of 22,000 from the 32nd floor of the Mandalay Bay Resort and Casino. In the hotel room, authorities found 23 rifles and handguns. Of the arsenal of weapons, he had outfitted 12 of the guns with ‘bump stocks’-an aftermarket, legal device that allows the weapon to fire more rapidly, similar to an automatic rifle.

Many times after a mass shooting, members of congress push to immediately pass bills designed to prevent similar attacks in the future. Following this pattern, members of congress are now considering passing a bill which bans the type of device used in the Las Vegas shooting. However, these bills are often short sighted.

Similarly, in the wake of the Las Vegas shooting, members of congress are now indicating a willingness to ban the firearm accessory used by the shooter. Like the bill following the Pulse nightclub shooting, this ban focuses on a small detail of the most recent shooting.

In 2017, there have been 11,774 gun deaths. It appears that bump stocks were only utilized in the Las Vegas shooting. Meaning, only .5% of these deaths involve a shooter using a bump stock device. Out of the 274 mass shootings in 2017, .3% of the shooters used firearm modified with a bump stock. Over the past 6 years, there have been 6 mass murders where 12 or more people died. In 2012, 12 people were murdered in a movie theater in Colorado and another 26 were killed in Sandy Hook Elementary school. In 2013, a gunman in Washington D.C. killed 12 people. In 2015, 14 people were killed while attending a holiday party in California. In 2016, 49 people were murdered at a nightclub in Orlando, Florida. The most recent mass murder is the only one in which these bump stocks were utilized by the shooter.

Obviously, the ban on bump stocks should be passed. It prevents the type of rapid fire that contributed to the deadliest modern mass shooting. But, while it can help prevent larger numbers of injuries and deaths, it will not prevent a mass shooting from occurring. But it is not a long term solution. Just like if congress had passed the bill after the Pulse nightclub shooting, this bill would do very little to prevent future mass shootings.

I own multiple shotguns, handguns and rifles, including an AR-15. Unfortunately, when the gun control debate is reignited by another mass shooting, my voice is often unheard. Maybe my message is drowned out by the NRA’s continued silence. Perhaps I’m ignored because I don’t fall within a predefined box, allowing you to label me an outlier. Either way, in the wake of yet another mass shooting by a U.S. citizen, please do not allow my plea to fall on deaf ears. So I ask that you do the following:

Put me on a registration list or ban my AR-15. Force me to wait three days before I pick up the next gun I buy or conduct a more thorough background check. Tell me I can’t own a 20- round clip for my AR-15. I don’t care what you do. But please do something.

In the coming weeks, some people will call for tougher gun laws, while others will remain silent, knowing that their Second Amendment argument simply does not hold water after yet another massacre. And while society is consumed with the gun-control debate, history indicates that our discussions are futile. After a gunman slaughtered 20 first-graders and six staff members in their school, after an American murdered 49 people because of their sexual orientation and after 32 students and professors were killed on a college campus, you passed no legislation. Instead, you chose to take to Twitter to express potentially preventable condolences to the families of the most recent group of slain individuals.

Now, I choose to believe your inaction is not because you are terrible people. I believe U.S. citizens have the ability to elect competent and kind individuals. Rather, I think your inaction is caused by two interrelated issues.

First, you accept the National Rifle Association as the voice of gun owners. Listening solely to this outspoken organization’s rhetoric is to ignore the majority of us. In fact, only about 6 percent of gun owners are members of the NRA. If you consider that NRA annual dues are only $40, it is hard to imagine this lack of support is due to financial limitations. It seems much more likely that 94 percent of gun owners are like me. We enjoy exercising our Second Amendment rights, but we also recognize that the right to bear arms cannot become an absolute right. We know that there are times when an individual must trade his or her rights to ensure everyone’s security. As a Second Amendment advocate, I ask that you listen to the majority of us, rather than be influenced by the money or power wielded by 6 percent of gun owners.

The second reason for your inaction seems to be your memory. You forget that most gun owners agree with mandatory waiting periods. And why do you struggle to pass universal background checks, considering most gun owners support them, including 74 percent of NRA members? Is there another explanation for your refusal to pass a ban on violent felons owning weapons? Especially considering the majority of us agree that some people just shouldn’t be allowed to own guns.

Of course, we don’t agree on all the issues. Some restrictions and laws can be polarizing. For example, some gun-control activists call for the registration of all guns. Some call for a ban on high-capacity, semi-automatic weapons. It would be easy for me to oppose these ideas. On the one hand, I know how I use my semiautomatic rifle. I know that I will use my AR-15 when a friend or neighbor needs help hunting the hogs that cause an estimated $52 million a year in damage in Texas. On the one hand, I like being able to help my neighbors protect their livelihood. I also know my AR-15 will never be used for a mass shooting.

But Congress, if you think a ban on AR-15s might reduce mass shootings, tell me where to drop mine off. If registering all guns means there is one less mass shooting, I’ll be the first in line.

Sure, there may be debate about which laws appropriately strike the balance between individual liberties and the safety of civilians, but the time for discussion has long passed. It is time for you to enact laws that require mandatory waiting periods and universal background checks. If you need to ban all semi-automatic, high-capacity guns, then draft the bill.

As a gun owner, I am calling on you to do something. My limited happiness is not worth the lifetime of sadness experienced by the friends and families of the victims of Las Vegas, Pulse nightclub, Virginia Tech, Sandy Hook, San Bernardino and any other mass shooting.

Michael Foreman is an attorney in Richmond, Texas. He wrote this column for The Dallas Morning News. Email: michaelforemanjd@gmail.com

]]>https://foremanlawblog.com/2017/10/11/dear-congress/feed/0pexels-photo-355959foremanlawblogWhen a Hurricane Hits Your Homehttps://foremanlawblog.com/2017/10/11/when-a-hurricane-hits-your-home/
https://foremanlawblog.com/2017/10/11/when-a-hurricane-hits-your-home/#respondWed, 11 Oct 2017 12:57:01 +0000http://foremanlawblog.com/?p=262Thankfully, most people in my life can’t tell that I slept in a trailer last night. As I put on the same suit/tie/shirt combination I’d worn to my last court hearing, I can’t help but wonder whether I’d run into any other lawyers I’d seen on Monday. Tip-toeing to avoid the residual mud on the driveway, I try to remember whether I have any dress socks in the two small garbage bags of clothes in my shed.

On August 25, 2017, I was as naïve as I was nervous. That morning, while I packed as if spending the next few days at the beach, I glanced at my wife’s side of the closet. Feeling foolish, I moved her wedding dress to the top shelf of our closet. As I unceremoniously exited our home, I tweeted: “My first #hurricane evacuation. Spent 10 min. walking around my house whispering ‘what has sentimental value’. Decided on nothing & left.” Driving north on hwy 45, I laughed as the local radio station played Luke Bryan’s ‘Rain Is A Good Thing’.

On August 31st, 2017, as my house filled with brackish water, I comfortably sat on my in-laws couch, drinking a Shiner bock and watching the weather channel. Trying to lighten the mood, I suggest a round of ‘What Do You Hope Gets Destroyed’—a game where we list items in our home that we’ve always hated. As Hurricane Harvey flooded my home, destroying almost everything I own, I was relatively comfortable.

Now, while driving to the Fort Bend County Courthouse, I think about a monologue one of my law professors loved to deliver: “As a trial lawyer, you leave yourself at the courthouse door. Being a lawyer is not about your feelings. You will do things that are uncomfortable, humiliating, or degrading. You do whatever it takes for your client.” I try to think about this every time I enter the Courthouse. But today, self conscious about my wrinkled shirt and lack of underwear, I’m struggling with it a bit more than usual.

For most people, the hardest time during a natural disaster isn’t the initial storm. It’s the time when your responsibilities stop caring about your home life. It’s the time when your life is nowhere near normal, but you have to pretend it is.

While a storm might receive worldwide attention immediately following the event, the coverage slowly fades as another, more pressing story takes hold. Initially, coworkers will pick up the slack while you tear down your home. Relatives will hold clothing drives at their churches. Bosses will give you time off to run home and meet the electrician. But slowly, you are forced back into normalcy. Coworkers will stop picking up the slack. You will use vacation days to meet the AC repair man. While you wait for your home to be remodeled, for insurance checks, or for contractors to get you a quote, people will slowly forget. Everyone will forget that all your clothes were destroyed. Or that you live with your wife and four dogs in a RV on your driveway. They will forget you don’t have a stove, washer and dryer, or refrigerator.

When anyone thinks about natural disasters, they think about the piles of debris, photos of children clutching first-responders, or other tattered remnants of the lives permanently altered by the storm. While these images depict the immediate aftermath of the storm, they fail to accurately portray the storm’s life-altering consequences. Because following the initial onslaught of national media, long after the donations, food-drives, and emergency relief, we will still be here. Tip-toeing to avoid the residual mud on our driveway, trying to remember if the mold engulfed all of our dress socks. Expected to be on time to a 9:00 a.m. Friday court hearing.

]]>https://foremanlawblog.com/2017/10/11/when-a-hurricane-hits-your-home/feed/0houseforemanlawblogA Style Guide: The South in the Summerhttps://foremanlawblog.com/2017/10/02/a-business-style-guide-the-south-in-the-summer/
https://foremanlawblog.com/2017/10/02/a-business-style-guide-the-south-in-the-summer/#respondMon, 02 Oct 2017 17:59:15 +0000http://foremanlawblog.com/?p=418While summer provides a perfect opportunity to return some energy to your wardrobe, business travel during the summer months can require a more muted style. As with all summer travel, your comfort starts with the basics. This is especially true when you’re running to a clients office in 95 degree heat. So, whether you’re traveling to Houston for an oil and gas conference, New Orleans for a client meeting, or Charleston to deliver a proposal , it is essential that you pack the right wardrobe. If you choose the wrong underwear or socks, no linen blend coat or breathable pants will be able to save you from sweating the moment you step out of the airport.

]]>https://foremanlawblog.com/2017/10/02/a-business-style-guide-the-south-in-the-summer/feed/0foremanlawblog34512334562346124123412131asdfa sdfsdlfkjasCoachSpending a Weekend in Central Texas’ New Travel Destinationhttps://foremanlawblog.com/2017/08/07/spending-a-weekend-in-central-texas-new-travel-destination/
https://foremanlawblog.com/2017/08/07/spending-a-weekend-in-central-texas-new-travel-destination/#respondMon, 07 Aug 2017 18:02:49 +0000http://foremanlawblog.com/?p=473Fans of the HGTV hit ‘Fixer Upper’ will not be shocked to hear that Waco, Texas is suddenly becoming a travel destination. With the show’s popularity on the rise, Waco has seen an explosion in the number of visitors. However, fans of the show may be surprised to hear that Waco has a lot more to offer. From an internationally renowned whiskey distillery to the world’s longest lazy river, Waco has plenty to offer, if you know where to look.

Where to Eat

Much like Waco itself, the culinary scene is starting to explode, but some of the best food is served at restaurants that have been around a while.

Viteks BBQ is what happens when a butcher decides to convert his meat market into a BBQ joint. We recommend trying “The Gut Pack”, which was recently named the Best College Eat by the Cooking Channel. Another staple in Waco is Baris Pasta and Pizza. With family recipes brought over from Italy and ingredients picked fresh daily, Baris somehow seamlessly combines BYOB with a home-like atmosphere. Finally, check out George’s for chicken fried steak and a cold Big “O” beer. For a sense of the atmosphere, check out Pat Green’s song “George’s Bar”.

What to Do

Founded by the stars of “Fixer Upper”, Magnolia Silos offers shopping and a large outdoor space where you can play corn-hole, throw the football around, and eat at food trucks serving everything from crepes to gourmet popcorn. For fans of whisky, check out Balcones distillery. Since starting under a bridge in Waco in 2011, Balcones has won over 140 nation and international awards, including being named as the 2017, 2015, 2014, and 2013 Texas Distillery of the year, 2015 Grand Master for American Whiskey, and the 2013 Grand Master Whisky of the World. The distillery offers tours, tastings, and a store where you can buy some special release whiskies, as well as their staples. For those wanting to spend some time in the sun, BSR cable park offers something for all ages. Started as a wake board park, BSR has since added a mile long lazy river, and the “Royal Flush”, a 120 foot waterslide that launches riders high into the air before splashing into a large pond (you may have seen this video that went viral last year). Also, Baylor University’s Campus is a great place to walk around, read a book, or check out the two bears (Lady and Joy) in their bear habitat.

Where to Stay

For lodging, we recommend staying at Hotel Indigo. The location is ideal, in the heart of downtown Waco. Built within the last few years, the rooms are modern and spacious. Plus, for a quick drink or bite to eat, check out the restaurant and bar in the lobby.

]]>https://foremanlawblog.com/2017/08/07/spending-a-weekend-in-central-texas-new-travel-destination/feed/0waciforemanlawblogCourt’s Order Requires Baylor University to Turn Over Documentshttps://foremanlawblog.com/2017/07/13/courts-order-requires-baylor-university-to-turn-over-documents/
https://foremanlawblog.com/2017/07/13/courts-order-requires-baylor-university-to-turn-over-documents/#respondThu, 13 Jul 2017 18:34:13 +0000http://foremanlawblog.com/?p=486Baylor University is involved in five Title IX lawsuits over its alleged failure to properly investigate and respond to sexual violence involving some of its students. As part of the lawsuits, the individuals suing Baylor have requested all the materials provided to and produced by Pepper Hamilton. Baylor has yet to provide the other side with Pepper Hamilton’s report, their investigation notes, recordings of interviews, or any other documents related to investigation.

On July 11, 2017, a Federal Judge ruled that Baylor University must turn over some documents that it has been withholding from the opposing party. The Court’s Order separates the Pepper Hamilton investigation material into two different categories: 1) materials provided to Pepper Hamilton; and 2) materials produced by Pepper Hamilton in connection with its investigation.

Baylor argued that the documents were protected by the Attorney-Client Privilege and the work product privilege. The attorney client privilege allows for a client (Baylor University) to refuse to disclose confidential communications between the client and the attorney. The work product privilege allows a party to withhold documents that show the thought process or trial strategy of an attorney or a client.

The Court’s Order finds that Baylor University waived its privilege relating to Attorney-Client communications. Because the privilege is waived, the Court ordered Baylor to produce all materials, communications, and information provided TO Pepper Hamilton as part of the investigation. This means that if Baylor has any interview recordings, or documents, which it gave to Pepper Hamilton to assist in its investigation, Baylor must now give those documents to the other side.

However, the Court’s Order finds that the work product privilege was not waived. This means that any documents created by attorneys (including Pepper Hamilton) or client (Baylor University) do not need to provided to the other side. This likely includes the Pepper Hamilton Report, interview notes, summaries, timelines, chronologies, or any other document that summarizes the evidence.

It is also important to note that the Court’s Order states that any documents Baylor gives to the other side will be labeled as confidential. This means that the public will not have access to any of these recordings, communications, or documents until after the trial is finished.

The Supreme Court has not established the proper method for analyzing Second Amendment issues. Most courts are inconsistent in determining the rights afforded within the Second Amendment because they rely on a combination of historical analysis, precedent, empirical data, logic, and judicial deference.1 While the Supreme Court has not established a method for resolving Second Amendment questions, the Court has employed a consistent method in recent Second Amendment cases.2 The Supreme Court in Heller and McDonald used history to analyze the language and purpose of the Second Amendment, at the time of it’s founding.3 This allowed the Court to determine what the language meant at the time of the founding and thus what rights were afforded based on those words.4 Therefore, the extent of the Second Amendment’s rights must be determined by employing a similar historical analysis. The historical analysis of the language and purpose at the time of the founding will dictate whether the Second Amendment extends to beyond the home.

The historical analysis demonstrates that the language used in the Second Amendment extends the rights of the individual beyond the confines of the home. Furthermore, the analysis shows that the purpose of the Second Amendment necessitates the rights extending beyond the home at the time of the founding. Because the right extended beyond the home at the time of the founding, it must extend beyond the home today. However, it is clear that the rights within the Second Amendment are not limitless. The rights of individuals under the Second Amendment are limited based on the type of weapon, the classification of the individual, and the type of location.

A. The Language of the Second Amendment

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”5 The critical language in determining whether the rights extend beyond the home is “to keep and bear arms.” To determine the meaning of the Second Amendment at the time of the founding, the analysis must begin with the 18th century. The 1773 edition of Samuel Johnson’s dictionary defined “keep” as, “to retain” and “to have in custody.”6 The 1771 edition of Timothy Cunningham’s dictionary defined “keep” as, “to hold; to retain in one’s power or possession.”7 The court in Heller concluded that the term “keep arms”, as used in the Second Amendment, means to “have weapons” for personal self-defense purposes.8 However, the term “keep arms” cannot possibly be read to allow an individual to carry the weapon beyond their home. This indicates that the issue must turn on whether “bear arms” establishes this right. At the time of the founding, “bear,” meant to “carry”.9 In Muscarello v. United States, Justice Ginsburg stated that “bear arms” in the Second Amendment “indicates: wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in case of conflict with another person.”10 The court in Heller, concludes that the “bear arms” wording in the founding-era meant to carry weapons.11 The historical analysis of the language indicates that the phrase “to keep and bear arms” grants a right to own or have weapons and a right to carry those weapons.12

The right to bear arms cannot mean to carry weapons strictly within ones house. If the founders intended for the Second Amendment to provide only a right to individuals within their house, the term “bear” would have not been included. This is evident by the definition of the phrase “to keep arms.” This phrase grants the right to own a weapon for personal protection, presumably to be stored within the home.13 Owning a weapon for personal protection necessarily requires the use of the weapon. When using a weapon for personal protection, an individual is required to handle or carry the weapon. This demonstrates that the phrase “to keep arms” encompasses the right to carry and use arms within ones home. To read the Second Amendment as only extending a right in the home is to ignore critical wording within the Amendment. The Second Amendment includes the word “bear”.14 This wording is not present simply to reiterate rights that have already been granted by the Second Amendment.15 Thus, the term “bear” grants rights different than the rights “to keep” provides. Therefore, at the founding, the Second Amendment necessarily gives individuals the right to carry weapons outside the home.

B. The Purpose of the Second Amendment Rights

The purpose of the Second Amendment’s right to bear arms is to grant individuals the ability to defend themselves and their property.16 This purpose, at the time of the founding, supports the rights extending beyond the home. The purpose of the Second Amendment at the time of the founding is critical because “it has always been widely understood that the Second Amendment . . . codified a pre-existing right.”17 Furthermore, this purpose has not changed throughout Second Amendment history.18 Therefore, the rights afforded to individuals in the Second Amendment extend beyond the home today.

The founding generation was a product of English rule. In England, the Kings disarmed political protesters to assure political longevity.19 Thus, the founding generation understood that the right to bear arms was rooted in self-defense and resistance. Writings from the founding-era confirm the conclusion that the right to bear arms granted the right to self-defense. In 1765 Blackstone wrote that this right was “the right of having and using arms for self-preservation and defence.”20 Furthermore, the New York Times wrote “[i]t is a natural right . . . confirmed by the Bill of Rights, to keep arms for their own defence.”21 Therefore, the right to keep and bear arms at the time of the founding was understood to be an individuals right to use arms for self- preservation and defense. Furthermore, prior to the ratification of the Second Amendment, four states’ constitutions included the right to bear arms.22 These constitutions further indicated that the purpose of this right was for an individual’s self-defense. For example, Georgia law in 1770 stated an individuals right to bear arms was “for the security and defence of this province from internal dangers and insurrections” which required the men “to carry fire arms” “to places of public worship.”23 This law demonstrates that the right to bear arms must have extended to beyond the home, in order to defend against internal dangers and insurrections. In fact, this law requires the certain individuals to carry firearms beyond their home.24 It is clear that the founding generation viewed the right to bear arms as a right extending beyond the home. Furthermore, the right to bear arms for self-defense necessarily extended beyond the home. An individual’s right to bear arms in self-defense included defense against tyranny.25 The defense against tyrannical governments is the ability to resist. Resistance against governments cannot take place within the home. Therefore, the right to use arms for self-defense and preservation, at the time of the founding, necessarily extended the right to beyond the home.

Analysis of the Post-Ratification era demonstrates that the purpose of the right to bear arms has not changed throughout history. Between 1789 and 1820, nine states included the right to bear arms as a legal right.26 Four states included the terminology “bear arms in defence of themselves and the state.”27 Three states used “right to bear arms in defence of himself and the State.”28 In Andrews v. State, the court found that the purpose of the Second Amendment was not strictly in defense of his political rights, indicating it is for self-defense.29 Joel Tiffany, wrote in 1849 that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.”30 These examples indicate that the purpose of the Second Amendment did not change over time.

The Second Amendment case law further demonstrates that the right to bear arms has consistently been a right of self-defense. In Johnson v. Tompkins, the court stated that the Second Amendment granted “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary…”31 Furthermore, in Nunn v. State, the Georgia Supreme Court stated that the Second Amendment protected the “natural right of self-defence”, when striking down a ban on carrying pistols.32 The Supreme Court of Louisiana held that the right to carry arms was a “right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves.”33 These cases further demonstrate that the rights afforded in the Second Amendment have always provided individuals with the right to defend themselves and their property.

The historical analysis, much like the one employed in Heller and McDonald, shows that the language in the Second Amendment supports an individual’s right to bear arms extends beyond the home. The term “keep” allows an individual to own a weapon and keep it inside their home for self-defense.34 This allows for an individual to use the weapon if needed. The term “bear”, at the time of the founding and now, means to “carry”.35 In order to carry the weapon, beyond the scope of rights already granted in the Amendment’s language, the Second Amendment must provide a right to carry a weapon beyond the home. This conclusion is not only supported by the lingual history, but also by the purpose of the Second Amendment. Throughout the history of the Second Amendment’s right to bear arms, the purpose has been to grant individuals the right of self-defense. At the time of the founding, personal self-defense required exercising the right to bear arms outside the home. This right cannot be diminished over time because it is a pre-existing right.36 Therefore, it is clear that the rights provided in the Second Amendment must extend beyond the home.

II. The Extent of Second Amendment Rights

The rights in the Second Amendment are not unlimited. This is evident by the court in Heller stating: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms.”37 Thus, the Supreme Court outlined the outer boundaries of the rights afforded in the Second Amendment. However, the Court never provided a clear test to determine which a class of weapons, people, or places are excluded from the rights in the Second Amendment.38 This has led to inconsistent results from the lower courts attempting to discern which classes are excluded from the Second Amendment.39 Therefore, a clear test for each limitation is required in order to determine the extent of the Second Amendment.

A. The Limitation on Type of Weapon

The Court in Miller said that the types of weapons that the Second Amendment extends to are those “in common use at the time.”40 The Court in Heller interprets the commonality requirement to mean that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.41 Thus, the Second Amendment only extends to weapons used primarily for self-defense or used for other lawful purposes.

The exclusion based upon the primary use of the weapon is consistent with recent court decisions. In U.S. v. Marzzarella, the court upheld the law prohibiting possession of a handgun with an obliterated serial number.42 The court determined that the protection under the Second Amendment did not extent to weapons not typically possessed by law-abiding citizens for lawful purposes.43 The court in Hamblen used a similar test to uphold the constitutionality of a categorical ban on certain types of weapons.44 The court upheld a defendant’s conviction for unlawful possession of a machine gun because the court found this weapon was not typically possessed for lawful purposes.45 The court in U.S. v McCartney found that the law prohibiting possession of silencers, grenades, and directional mines did not violate the defendant’s Second Amendment rights.46 The court found that law-abiding citizens do not typically posses these weapons for lawful purposes.47These cases further the assertion that a categorical ban on weapons not typically used for self-defense by law-abiding citizens is not a violation of the Second Amendment. Therefore, the Second Amendment only extends to those weapons, which are typically used for self-defense and other lawful purposes.

B. The Limitation to People

Another limitation on the rights provided in the Second Amendment is based upon a

certain classification of people. The Court in Heller gave two examples of the type of classes that can be excluded based upon their classification: felons and mentally ill.48 However, the Court does not provide a method for determining a class of individuals that the Second Amendment does not extend to.49 Therefore, the test must develop from the rational behind exclusion of the two examples. These two groups were excluded because they can be dangerous with a weapon. Thus, the rights in the Second Amendment extend beyond the home for individuals who are not considered dangerous if permitted to possess a weapon.

The exclusion of individuals who would be dangerous is consistent with recent court decisions. In U.S. v. Skoien, the court upheld a law that barred possession of firearms by all persons convicted of domestic violence.50 The law in Skoien was upheld because the law excluded a class of individuals that would be dangerous if they possessed a firearm.51 In U.S. v. Vongxay, the court held that a law prohibiting felons from possession firearms did not violate the Second Amendment.52 The court in U.S. v. Korbe declined to dismiss an indictment because the court held that substance abusers are a danger if permitted to carry a weapon.53 These examples demonstrate the extent of the Second Amendment rights based upon a classification of person. The Second Amendment only extends to classes of people who are not dangerous to society if permitted to possess a firearm.

C. The Limitation on Place

The final limitation that the court alluded to is a limit on the Second Amendment rights based upon the location of the individual. The Court in Heller states, “carrying of firearms in sensitive places such as schools and government buildings” can be constitutionally limited.54 The Court in Heller restricted the Second Amendment’s rights by including “sensitive places”, but only provided two examples of what may classify under this test.55 The “sensitive places” test is far too vague to be applied consistently. Thus, a test must be developed from the other portions of the Court’s opinion. The Second Amendment must only extend to locations that a weapon would be carried for lawful purposes more frequently than for unlawful purposes. This limit is consistent with the other restrictions that the Supreme Court has placed upon the rights afforded in the Second Amendment.

The limitation of an individual’s Second Amendment rights based upon location is consistent with recent case decisions. In Georgia, a court upheld a law prohibiting possession of weapons in government buildings, courthouses, jails, places of worship, mental health facilities and polling places.56 These locations demonstrate the weighing-test in determining whether a location is sensitive. The government buildings, courthouses, places of worship, and polling places are all locations that an individual may carry a weapon for unlawful purposes because of the activities that take place there. The Jail and mental health facilities are locations that an individual would carry a weapon for unlawful purposes because of the individuals found there. These locations do not present a lawful reason to carry a weapon. Therefore, the reasons for carrying a weapon at these locations weigh far greater on the unlawful purpose side of the test. This example demonstrates that the Second Amendment must only extend to locations that a law-abiding citizen would reasonably carry a weapon for self-defense purposes.

III. Conclusion

The Supreme Court in Heller demonstrated the proper method to determine the extent of

the Second Amendment’s rights. The Court uses history to determine the meaning of the language at the time of the founding. Applying the same analysis shows that the rights within the Second Amendment extend beyond the home. Furthermore, the historical analysis demonstrates that the rights in the Second Amendment must extend beyond the home to fulfill the purpose of the Second Amendment. The rights at the time of the founding are crucial to the determination because “it has always been widely understood that the Second Amendment . . . codified a pre- existing right.”57 Thus, the rights under the Second Amendment at the time of the founding are the same rights as today. Therefore, the Second Amendment extends beyond the home to protect an individual’s right to own a gun for personal self-defense. However, this right is not unlimited. The Second Amendment only extends to certain people, with certain weapons, in certain locations. First, the Second Amendment extends to only to law-abiding citizens. Second, the Second Amendment only extends to guns typically used for lawful purposes. Third, the Second Amendment extends to locations that a weapon is normally carried lawful for purposes.

]]>https://foremanlawblog.com/2017/07/04/the-second-amendment-beyond-the-home/feed/0macforemanlawblogUnder Proposed Bill 93, Divorce in Texas May Take Three Yearshttps://foremanlawblog.com/2017/02/06/under-proposed-bill-93-divorce-in-texas-may-take-three-years/
https://foremanlawblog.com/2017/02/06/under-proposed-bill-93-divorce-in-texas-may-take-three-years/#respondMon, 06 Feb 2017 19:11:30 +0000http://foremanlawblog.com/?p=484Divorce can be one of the most difficult times in a person’s life. However, couples can make the process more bearable by agreeing that the marriage is “insupportable”. “Insupportable” simply means that the marriage is not working because of conflicts within the marriage.

Current Texas Law

Under the current law, if the marriage has become “insupportable” because of conflict, couples can agree on the provisions of the divorce, the division of property, and the custody of the children. If the couples can agree on the divorce terms, there is very little Court involvement. Generally, this is considered to be the easiest and least burdensome method of getting a divorce in Texas. Usually, in a divorce under the “insupportability” provision, the exploration of the couples personal lives is less invasive, the process is less contentious, and the parties can get a divorce relatively quickly.

The Proposed Changed

Proposed Bill 93 would repeal insupportability as a ground for divorce. If the “insupportability” provision were removed from the Texas divorce law, couples seeking divorce in Texas would only have two options.

The first option is that one spouse would have to show that the other spouse is “at fault” in their divorce. For a spouse to be at fault, the Court must find that they were guilty of cruel treatment, committed adultery, are in jail, abandoned the marriage, or are confined to a mental hospital. This requires the Court to explore more personal aspects of the marriage and can take much longer than a no-fault divorce.

If a couple seeking divorce could not show that the other spouse was at fault (by fulfilling one of the listed requirements), the only other option is for the spouses to live apart for at least three years.

Essentially, if neither spouse could show that the other spouse was cruel, in jail, abandoned the marriage, committed adultery, or was in a mental hospital, the couple would be required to live apart for three years before seeking a divorce.

Obviously, this proposed change would make it much more difficult for Texans to get divorced. What do you think about this proposed law?

]]>https://foremanlawblog.com/2017/02/06/under-proposed-bill-93-divorce-in-texas-may-take-three-years/feed/0capital 1foremanlawblogNew MacBook Pro Can’t Be Used for the Texas Bar Examhttps://foremanlawblog.com/2017/01/31/new-macbook-pro-cant-be-used-for-the-texas-bar-exam/
https://foremanlawblog.com/2017/01/31/new-macbook-pro-cant-be-used-for-the-texas-bar-exam/#respondTue, 31 Jan 2017 19:09:44 +0000http://foremanlawblog.com/?p=482A new MacBook Pro feature may compromise the Bar Exam’s security software. The new MacBook Pro’s Touch Bar provides users with a predictive text feature, which suggests words as the user is typing. Because of the Touch Bar feature, Bar Exam committees are forced to decide how to handle these computers moving forward.

North Carolina recently announced that the Touchbar feature on the new MacBook Pro must be disabled before students can take the Bar Exam. ExamSoft, the company who developed the software to ensure that the Bar Exam is secure, has released a guideon how to disable the Touch Bar feature.

While North Carolina has decided that students can use the computer, as long as they disable the feature, some states have banned the use of the computer completely. In an email sent out to all February test takers, the California Committee of Bar Examiners announced that the computer cannot be used in the February, 2017 exam.

While its decision has not been officially announced, when we called the Texas Board of Law Examiners’ office, it confirmed that the board has decided that students cannot use the new MacBook Pro to take the February 2017 Bar Exam. When asked about the use of the MacBook Pro in the future, they indicated that this may be a permanent decision.